Keitt v. Hawks et al

Filing 83

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge Andrew T. Baxter's January 8, 2015 Report-Recommendation (Dkt. No. 79 ) is ADOPTED in its entirety. ORDERED that defendants' motion for summary judgment (Dkt. No. 67 ) is GRANT ED. ORDERED that Keitt's cross motion for summary judgment (Dkt. No. 73 ) is DENIED. ORDERED that Keitt's renewed motion to appoint counsel (Dkt. No. 82 at 11) is DENIED. ORDERED that Keitt's second amended complaint (Dkt. No. 38 ) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 3/18/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DEVIN KEITT,
Plaintiff,

9:13-cv-850
(GLS/ATB)

v.
T. HAWK et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Devin Keitt
Pro Se
06-A-2122
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

MICHAEL G. MCCARTIN
Assistant Attorney General

Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Devin Keitt commenced this action against defendants

T. Hawk, M. Lira, D. Uhler, J. Otis, D. Rock, B. Fischer, J. Bellnier, D.
Martuscello, P. Melecio, C. Miller, D. Ali, A. Perez, E. Killar, the State of
New York, and the New York State Department of Correction/Community
Supervision (DOCCS), pursuant to 42 U.S.C. § 1983, alleging violations of
the Religious Land Use and Institutionalized Persons Act 1 (RLUIPA), the
Americans with Disabilities Act 2 (ADA), the Rehabilitation Act, 3 and the
First, Eighth, and Fourteenth Amendments. (See generally 2d Am. Compl.,
Dkt. No. 38.)
On March 21, 2014, defendants filed a motion for summary judgment.
(Dkt. No. 67.) Keitt filed a response and a cross motion for summary
judgment. (Dkt. No. 73.) In a Report-Recommendation (R&R) issued on
January 8, 2015, Magistrate Judge Andrew T. Baxter recommended that
defendants’ motion for summary judgment be granted in its entirety, Keitt’s
cross motion be denied, and Keitt’s second amended complaint be
dismissed. (Dkt. No. 79.) Pending are Keitt’s objections to the R&R. (Dkt.
No. 82.) For the reasons that follow, the R&R is adopted in its entirety.

1

See 42 U.S.C. §§ 2000cc-2000cc-5.

2

See 42 U.S.C. §§ 12101-12213.

3

See 29 U.S.C. §§ 701-796l.

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II. Background
Keitt is an inmate, currently in the custody of DOCCS, and, during the
time periods relevant to his claims, was housed at Upstate Correctional
Facility and, later, Coxsackie Correctional Facility. (Defs.’ Statement of
Material Facts (SMF) ¶¶ 1, 2, 17, Dkt. No. 67, Attach. 25.) Keitt, a Muslim,
suffers from dyslexia and diabetes, which requires him to take medication
three times a day with food. (Id. ¶ 2; 2d Am. Compl. ¶¶16-17, Dkt. No. 38.)
Thus, he cannot fast during Ramadan. (Defs. SMF ¶¶ 3-4; 2d Am. Compl.
¶¶ 18-19.) Despite his inability to fast, Keitt alleges that, while housed at
Upstate on September 1, 2008 and in August 2010, he was not permitted
to participate in the special meal provided after sundown to inmates who
fasted during the day. (2d. Am. Compl. ¶¶ 20-21.) He claims that he was
denied this meal because of his disability, in violation of his First
Amendment right to freedom of religion, Fourteenth Amendment right to
equal protection, the ADA, and RLUIPA. (Id. ¶¶ 20, 30, 34.) Keitt also
claims that he was retaliated against, also in violation of the First
Amendment, when Hawk “carried out a threat” to prevent him from
participating in the special meal after he indicated that he intended to file a
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lawsuit. (Id. ¶ 31.)
After he was transferred to Coxsackie, Keitt alleges that he was not
permitted to wear religious headgear and clothing at all times—including
throughout the facility and on outside trips. (Id. ¶¶ 112-18, 128-34.) He
claims that this violates equal protection because he is only permitted to
wear religious garb “at one place” and at religious services, but inmates
who are Sikhs are permitted to wear their turbans at all times. (Id. ¶¶ 11516, 128-29.) Additionally, because he is dyslexic and cannot read, Keitt
claims that he is entitled to be provided with “reasonable accommodation”
of religious “books on tape” or “auxiliary aides (sic)” while he attends
religious classes. (Id. ¶¶ 122-27.) Keitt further claims that Ali, a Muslim
chaplain, denied Keitt’s requests for those devices, and also, allegedly,
retaliated against him when he refused to put Keitt on the call-out for Friday
religious services after Ali learned that Keitt filed a grievance against him.
(Id. ¶¶ 207-08, 210.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
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findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
In his R&R, Judge Baxter first recommended that Keitt’s claims
regarding the Ramadan meal in 2008 be dismissed as time barred by the
three-year statute of limitations governing claims arising under § 1983
because Keitt did not file his complaint until March 28, 2012. (Dkt. No. 79
at 8-11 (citing Owens v. Okure, 488 U.S. 235, 250-51 (1989)).) With
respect to the remainder of Keitt’s religious diet claims arising from his stay
at Upstate, Judge Baxter recommended that those claims also be
dismissed because the named defendants were not personally involved in

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decisions regarding inmates’ diets, religious or otherwise. 4 (Id. at 11-15.)
Next, Judge Baxter recommended dismissing Keitt’s claims regarding his
religious clothing, books on tape, and ability to attend religious services
because Keitt failed to exhaust his administrative remedies, and, even if
Keitt properly exhausted, these claims fail on the merits. (Id. at 25-37.)
Finally, Judge Baxter recommended dismissal of Keitt’s remaining claims
under §§ 1981 and 1985, again, for failure to allege personal involvement.
(Id. at 37-38.)
Here, in his objections, Keitt utterly fails to identify errors with any
specific portion of the R&R. (See generally Dkt. No. 82.) Instead, Keitt
renews his motion to appoint counsel, 5 (id. at 11), erroneously contends
that he was denied the opportunity to amend his complaint, (id.; see Dkt.
Nos. 1, 31, 38), and otherwise simply re-states the facts as he views them
and regurgitates arguments he has already made, (Dkt. No. 82 at 1-10), all
of which Judge Baxter thoroughly considered in his R&R, (compare id.,
with Dkt. No. 73 at 3-7). These “objections” are not sufficient to trigger de

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Additionally, despite the fact that these claims could be dismissed for lack of personal
involvement, Judge Baxter went on to explain that these claims should also be dismissed on
the merits. (Dkt. No. 79 at 15-25.)
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Keitt’s renewed motion to appoint counsel is denied.

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novo review. Accordingly, consistent with the standards set forth in
Almonte, 2006 WL 149049, at *3-5, the court has carefully reviewed the
record, found no clear error in the R&R, and adopts it in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter’s January 8,
2015 Report-Recommendation (Dkt. No. 79) is ADOPTED in its entirety;
and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
67) is GRANTED; and it is further
ORDERED that Keitt’s cross motion for summary judgment (Dkt. No.
73) is DENIED; and it is further
ORDERED that Keitt’s renewed motion to appoint counsel (Dkt. No.
82 at 11) is DENIED; and it is further
ORDERED that Keitt’s second amended complaint (Dkt. No. 38) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
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IT IS SO ORDERED.
March 18, 2015
Albany, New York

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